The Reference Riddle, 0520 SCBJ, SC Lawyer, May 2020, #28

• Author: By Samantha Albrecht
• Position: Vol. 31 Issue 6 Pg. 28

The Reference Riddle

No. Vol. 31 Issue 6 Pg. 28

South Carolina BAR Journal

May, 2020

By Samantha Albrecht

What do you say when someone calls for a reference on a former employee?

Employees come in all shapes and sizes. There are employees who light up the room and increase everyone else’s productively when they’re around, there are employees who are always willing to help out and who consistently go the extra mile. Then there are those on the other end of the spectrum—the employee who is always coming in late and leaving early, the ones who cannot seem to follow directions or meet a deadline, or who seems annoyed when they are asked to do their job. When an employer is called for a job reference for a former employee, especially a former employee who was not such a pleasure to employ, South Carolina law helps guide employers as to what they should and should not say.

Giving a job reference for an excellent employee is an easy task. Employers often take great pleasure in informing their business peers of the virtues their former star employees possess. The most difficult task of giving a reference for a positive employee is often simply the regret of no longer employing such a valuable team member.

Giving a job reference for a former employee who was not so excellent, however, can be difficult. Employers are placed with a moral dilemma on whether to lie to help the former employee get a new job or tell the truth by providing an honest reference complete with a list of all the reasons the employee was lazy or incompetent. Moreover, disclosing the full truth of an employer’s experience with a bad employee can often result in increased exposure to liability. An arguably honest negative reference can easily open the door to a defamation suit.

South Carolina law provides that a statement is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.^[1] Such statements are further defamatory per se when they accuse the individual of unfitness in their business or profession. This creates a presumption of malice on the part of the defendant and damages on the part of the Plaintiff.^[2] Defamation may occur by actions or conduct as well as by word. ^[3]

At the end of the day, if the negative reference given is true, the former employer should not be liable for defamation...